Dana v. Gulf & Ship Island R.

Cook, J., delivered the opinion of the court. This is an action of tort, begun in the circuit court of Harrison county by appellant against appellee. The declaration alleges that appellant, an employee of appel-lee, was injured by the negligence of his employer. To this declaration appellee filed a plea of accord and satisfaction. [505] Two replications were filed to this plea — one setting’ np a contract of settlement and averring a breach thereof; the other setting np the terms of settlement agreed on by the parties thereto, a partial performance of same, the breach thereof, and further, that appellee entrapped him into making a settlement, intending at the time not to carry out its part of the contract, and that this was fraudulently done to avoid paying him for the injuries inflicted upon him. This, in brief, is the substantial effect of the replication. Demurrers were filed to both pleas and sustained. We approve the action of the trial court in sustaining the demurrer to the first replication, but we think it was error to sustain the demurrer to the second replication. “Fraud vitiates all things, and may be predicated of promises designed to entrap the unwary, and never intended to be kept, as well as misstatements of existing facts.” Patton-Worsham Drug Co. v. Planters’ Co., 86 Miss. 423, 38 So. 209. “It is one thing to attempt to vary, alter, or contradict the terms of a written contract once validly executed, and quite a different thing to show that the contract offered never had any. legal existence, because its execution was procured by fraud. ’ ’ Howie v. Platt, 83 Miss. 15, 35 So. 216. Reversed and remanded.